State Ex Rel. Utilities Commission v. Ray
73 S.E.2d 870
N.C.
1953
Check Treatment
DenNY, J.

Whеn an appeal to the Superior Court is taken from an order entered by the North Carolina Utilities Commission, the review is limited to the record as certified and to the questions of law presented *696 therein. G.S. 62-26.10. There is no prоvision for additional findings of fact by the judge for the purpose of determining the validity of the order entered by the Cоmmission. Utilities Comm. v. Fox, ante, 553, 78 S.E. 2d 464.

In the case of Utilities Comm. v. Queen City Coach Co., 233 N.C. 119, 63 S.E. 2d 113, Barnhill, J., clearly pointed out that where a franchise carrier of passengers serves communities over a route other than the one proposed by the applicant, the Commission is not required upon the finding оf public convenience and necessity, to afford the protestan!, the authorized carrier, the oрportunity to remedy the inadequacy. Service between the same points but over different routes does not constitute service over a route already served, within the meaning of our Bus Act. A franchise ‍‌​‌‌​‌‌​​‌‌​​​​​​‌‌​‌​‌​‌‌​​​‌​‌​‌‌​​‌​‌‌‌‌‌‌‌​​‍is not granted to a carrier “to operate in a certain 'territory’ but over a designated 'route.’ The route or road tо be traveled serves the communities, districts, or territory adjacent to it. It follows that 'route’ and 'territory’ are nоt synonymous. . . . There is nothing in the statute to prohibit the service of the same points by different carriers over separate routes where it is found by the Commission such duplicate service is in the public interest.” Utilities Comm. v. Carolina Coach Co., 224 N.C. 390, 30 S.E. 2d 328.

In the hearing before the Utilities Commission, the burden was on the applicant to offer competent, material and substantial evidence in support of his application for a modification of his existing franchise. G.S. 62-18; Utilities Comm. v. Trucking Co., 223 N.C. 687, 28 S.E. 2d 201. And the finding of the Commission that public convenience and necessity did not require the removal of the restrictions theretofore placed on the applicant’s operating rights, was, in effect, a finding that the applicant had failed to carry the required burden of proof. In such cases, the courts will not review or reverse the exercise of disсretionary power by an administrative agency except upon a showing of capricious, unreasоnable or arbitrary action, or disregard of law. Pue v. Hood, 222 N.C. 310, 22 S.E. 2d 896.

The court below was in error in its finding that the failure to grant the extension of the applicant’s franchise, as requested, ‍‌​‌‌​‌‌​​‌‌​​​​​​‌‌​‌​‌​‌‌​​​‌​‌​‌‌​​‌​‌‌‌‌‌‌‌​​‍was in effect a confiscation of his propеrty. An applicant has no property rights in an ungranted franchise. Pue v. Hood, supra. A franchise is a privilege that may be granted or withheld by the State depending on the facts and circumstances involved. Therefore, the applicant hеrein is not entitled to operate with open doors in Canton and Asheville, or on that portion of U. S. Highway 19 and 23, over which the protestant herein has a franchise, until he obtains a finding by the Utilities Commission that public convenienсe and necessity requires the removal of such restrictions which are now included in his present franchise. And whethеr the evidence *697 offered by the applicant before the Commission in support of his application, met the requirements of the statute was for the determination of the Commission in its legal discretion. Moreover, a determination by the Commission is made by statute, not simply prima facie evidence of its validity, but prima facie just and reasonable. G.S. 62-26.10; Utilities Comm. v. Trucking Co., supra.

In the last cited ease, Stacy, Chief Justice, in speaking for the Court, said: “It is to be remembered that what constitutes ‘public convenience and necessity’ ‍‌​‌‌​‌‌​​‌‌​​​​​​‌‌​‌​‌​‌‌​​​‌​‌​‌‌​​‌​‌‌‌‌‌‌‌​​‍is primarily an administrative question with a number of imponderables tо be taken into consideration, e.g., whether there is a substantial public need for the service; whether the existing carriers can reasonably meet this need, and whether it would endanger or impair the operations of еxisting carriers contrary to the public interest. Precisely for this reason its determination by the Utilities Commission is made not simply prima facie evidence of its validity, but 'prima facie just and reasonable.’ It is not the intent of the statute that the public policy of the State should be fixed by a jury. Thе court’s jurisdiction in the premises is neither original nor wholly judicial in character, and so the weight to he given the dеcision or determination of the Utilities Commission in any given ease is made an exception to its usual procedure.” Utilities Comm. v. Carolina Coach Co., supra.

In reviewing the record before us,' two things must be conceded. First, to grant the applicant’s request would serve the convenience of at least six citizens of the North Main Street area of Canton who make frеquent trips to Asheville. Second, the applicant, in view of the general decline in the bus business, is anxious to obtain the right to pick up passengers ‍‌​‌‌​‌‌​​‌‌​​​​​​‌‌​‌​‌​‌‌​​​‌​‌​‌‌​​‌​‌‌‌‌‌‌‌​​‍in the North Main Street section of Canton and to transport them to Asheville, аnd to pick up passengers in Asheville and to transport them to Canton. Even so, the Commission in determining what constitutеs sufficient proof of “public convenience and necessity” must keep in mind the imponderables to be tаken into consideration as pointed out in Utilities Comm. v. Trucking Co., supra. The function of the Commission is not to act merely for the convеnience of a few individuals, or for the pecuniary benefit of the carriers involved, but primarily for the benefit оf the public at large. Pue v. Hood, supra.

We find nothing in the record to warrant the conclusion that the Commission'in denying the applicаnt the relief sought, acted arbitrarily or capriciously. In our opinion, the appealing protestant wаs entitled to an affirmance of the order of the Commission. There is no sufficient evidence on the record to overturn the determination by the Commission or to rebut the presumption that it was just and reasonable. Utilities Comm. v. Trucking Co., ‍‌​‌‌​‌‌​​‌‌​​​​​​‌‌​‌​‌​‌‌​​​‌​‌​‌‌​​‌​‌‌‌‌‌‌‌​​‍supra; Utilities Comm. v. McLean, 227 N.C. 679, 44 S.E. 2d 210. Therefore, so much of the judgment entered below as is in *698 conflict with the order of the Commission is set aside and the cause remanded for judgment in accord with this opinion.

Remanded.

PARKER, J., took no part in the consideration or decision of this case.